BOOK REVIEWS

Stanley B. Lubman, Bird in a Cage. Legal Reform in China After Mao

This is an important book, which is already well on its way to becoming a classic in the United States. Indeed, it is a long time since any book of this kind—an overall analysis of contemporary Chinese law—written with this level of expertise has been published. Admittedly, a certain number of collective volumes came along during the 1990s in North America, books that threw some useful light on how the most important (or visible) aspects of the legal system were evolving in the People’s Republic of China (PRC) (1). But in this field, comprehensive studies by single writers are still a rarity (2).

Such a synthesis is particularly illuminating, especially when carried out by an academic who has, over several decades, observed the law in China being destroyed and then with difficulty being recreated. This is absolutely the case with Bird in a Cage. As a working lawyer, Stanley Lubman has observed China’s legal system since the early 1960s; and, as a teacher at Stanford University, he is one of America’s leading specialists in this field. In some 300 densely written pages, enlivened with personal anecdotes that complement the argument while supporting it, the author gives a complete, lucid and brilliant account of the last thirty years (1970–98) of legal reform in the People’s Republic.

The book’s ten chapters, including a short introduction and a rich and wise conclusion, are followed by a fertile bibliography. Within that framework, all the salient aspects of Chinese law are dealt with. First, (in Chapter 2), Lubman sets out, in the form of a particularly lively philosophical and juridical dialogue, the main oppositions or differences between Western and Chinese conceptions of the state and the law. Then, having expanded on one of his earlier studies (3), Lubman reminds us of the importance, in Mao-Zedong’s time, of mediation and extrajudicial methods of conflict resolution and, above all, of how weak were the guarantees that this system offered to concerned parties, particularly to those far from the seat of power or in a delicate relationship with it. In the same way, basing himself on earlier work (4), he draws up the legal balance sheet of the first thirty years of the communist regime: under Mao, law was just another form of administration, a form that disappeared almost entirely during the Cultural Revolution. Cracking down on criminals and enemies of the state came first, while what passed for “civil law” was a marginal concern.

These two chapters (3 and 4) help us to understand to what extent China’s leaders had to reconstruct the country’s legal system, starting after 1978 almost from scratch. Even so, they did not start with a blank page. The legal reforms undertaken in the late 1970s were based both on experience of the Soviet type accumulated during the regime’s first decade (constitutional, criminal and economic laws, especially during the 1980s) and on Western conceptions that seemed transferable to China at that time (parts of economic law and civil law). As Lubman shows (Chapter 5), the balance or the compromises between the two sources of inspiration were largely dictated by how the economic reforms were progressing. The result of this evolution is far from being reassuring: a notable rise in clientelism and corruption, a persistent ambiguity over ownership rights, and an approach to law that was still largely “instrumentalist”, despite recent debate about how to establish the rule of law (yi fa zhi guo).

It is true that, after Deng Xiaoping returned to power, the first task of the Communist leadership was to “legalise the state”, to “reinvent” the legal profession and to “regularise” the system of penal justice (Chapter 6). Here again, Lubman is mercilessly frank and intellectually honest: the framing of laws is still marked by “formalism” (as one might call the process of turning political standards and declarations into legal articles) and “positivism” (the law being the only source of justice, and only rarely being reinforced by precedent) (p. 148). Lawyers are certainly not, since the new law of 1996, “state employees”, but their new role, as well as their autonomy, are still far from being fully acknowledged. Criminal law and criminal procedure have undergone important changes over the past twenty years and, since 1996-1997, are based on wholly re-written codes. The application of these laws, and the establishment of a fair and institutionalised system of criminal justice, however, meet with numerous encumbrances: these include the persistence of administrative sanctions as well as interference by the security forces and the Communist Party.

If there is one field in which considerable advances have been made it is in economic law, and then more recently in administrative law (Chapter 7). Yet, here again, it is the “utilitarian” approach that has usually prevailed: what was needed was a judicial framework that would first of all attract foreign investment and then keep pace with, or rather catch up with, unfolding economic relationships linked to the progressive appearance of market mechanisms. While the amount of legislation has been impressive, its application is still frequently uncertain and uneven. These variations, which affect both places and timetables, arise in large part from the discretionary powers of the bureaucracy. This has led, starting in the late 1980s, to the progressive establishment of administrative legislation: however, as Lubman points out, the laws promulgated (among them the Administrative Litigation Law, which allows people to lodge complaints against the administration) are “only weak initial steps toward the control of administrative inequality” (p. 214).

The last two chapters (8 and 9) are devoted to the implementation of the laws, and the administration of justice. The author shows on the one hand that, despite a relative drop in the number of cases, mediation—extrajudicial but administrative—remains an essential means of conflict resolution. On the other, he examines the function of China’s tribunals and the growing burden of work that they have to confront. Lubman shows that the judiciary is not independent, not when it comes to the Communist Party or to the local administrations that finance it; he points to the judges’ lack of qualifications and to the approach they still have to the law—as a collection of rules designed to administer society, than a system of standards creating individual and collective rights. In his eyes, these failings make the PRC’s legal system, not a rule of law but—borrowing Chen Yun’s now outdated metaphor for the economy and the state—a bird whose cage has grown wider but is still far from disappearing (p. 297).

The conclusion to so varied and extensive a study can only be cautious (Chapter 10). Numerous uncertainties persist, particularly as concerns the future of relations between the local politico-administrative powers and the tribunals, and the role of lawyers. However, two realities become daily more urgent: the growing need for justice within Chinese society, and the impossibility of establishing the rule of law without political reforms or any challenge to the monopolistic power of the Communist Party.

It is difficult not to subscribe to the overall analysis that Stanley Lubman offers us, or to acknowledge the reliability of the sources and information on which it is founded. Accordingly, my criticisms are comparatively minor. I shall limit their number to four. Two of these concern regrettable omissions; a third is about how the book is organised; and the fourth is aimed at what I perceive as a contradiction between the inventory of fixtures and what we, as foreigners, can do to improve the situation.

The chapter devoted to history, setting out the main differences between Chinese and Western traditions, is in fact lacking in historicity. Doubtless, it is handy and useful, in a didactic sense, to construct Weberian-ideal-types but this presentation tends not only to dismiss the evolution that took place within the Chinese imperial conception of justice but also omits to give weight to the significant reform process and the Westernisation of Chinese law that took place at the end of the Manchu dynasty (Shen Jiaben) and then during the republican period, especially under Chiang Kai-shek (with help in particular from German and French jurists, among them Jean Escarra). It is true that, in 1949, Mao made a clean sweep of past juridical modernisation, abolishing at one vengeful stroke the six legal codes of the Republic of China, which are still in force in Taiwan. But that half-century of legal acculturation remains all the more important since the present legal system in the PRC is influenced—far more than is believed and than Peking will admit, for obvious political reasons—by Taiwanese law. In today’s democratic Taiwan, the law—and the fight to win greater independence for the tribunals—far from being “marginalised” (p. 318), occupy an important place, and one that is likely to grow still further.

Lubman is right in suggesting that we should be wary of collections of published laws: these are often idealistically eye-catching and do not paint an accurate picture of jurisprudence (p. 210). Nevertheless, the long analysis of the Chinese tribunals’ main characteristics and their difficulties leaves the reader partly unsatisfied: would it not have been possible to trace—if only in outline and on the basis of a few examples chosen from among the various branches of the law—the evolution of known jurisprudence in China. There is no doubt that such a labour would be worthy of Sisyphus and, in the context of a work of synthesis, would clearly have appeared incomplete. However, just as Chinese legislation has profoundly evolved since the promulgation of the first laws in 1979, the decisions handed down by tribunals have gained in professionalism and consistency, at least in certain fields and jurisdictions and in particular with support from the Supreme Court.

The book’s layout is sometimes baffling. No doubt this is the reaction of a French jurist, accustomed to a rational progression, starting with a historical section (Empire, Republic of China and Maoist period) and continuing along the formal path favoured by law faculties (constitutional law, the organisation of the judiciary and representatives of the law, civil law, administrative law, criminal law and so on). Even so, a more classical presentation of contemporary Chinese law would have, for example, given a clearer picture of the originality and the ambiguities of what socialist countries call “economic law”. Similarly, it would have been easier to show the innovative, even revolutionary, character of administrative law, which is a branch of law that was non-existent in China and completely incomprehensible to its jurists before 1986-1987.

Lastly, although the author admits that “the Rule of Law is an ideology” which is not that of the Communist Party (p. 297), he proposes to the American government a course of action regarding both human rights and training that I should be tempted to describe as “premature” (pp. 309 and subsequent). On the one hand, as Lubman acknowledges, it is true that the United States is not always best placed to ask other states to accept international standards (take, for example, the International Covenant on Civil and Political Rights, which Washington signed only in 1992) that threaten their sovereignty: it is a principle to which Americans are probably just as attached as the Chinese, when it concerns their national frontiers and, obviously, the application of American law. Nonetheless, a more discreet approach to protecting civil rights in China is likely to be even less effective than public protests. European governments have for some years been obsessed by the miracle contracts that their businessmen might secure, and have given up raising their voices—with the result that the only dissidents to be released in China and then expelled, over these past ten years, owe their freedom exclusively to American pressure (Wei Jingsheng, Wang Juntao, Wang Dan and others). And if Peking is so keen to sabotage the resolutions of the United Nations Human Rights Commission, it is not only that these resolutions would affect the regime’s “face” but also because this mechanism would force the People’s Republic into giving the international community a far more detailed account of itself on human rights than it does at present.

On the other hand, one can only commend Lubman’s realism when he asserts that American pressure on China to tighten up its legal protection of intellectual property rights has little chance of success (p. 313). Yet, more sustained American efforts, as he demands, towards training Chinese lawyers—in administrative law particularly—is likely to turn out disappointing. For years, while Taiwan’s best lawyers were being trained in the United States, often paid for with American aid, the Taiwanese outdid each other in violating the most elementary laws of copyright. Although in this area the threat to advanced societies’ interests represented by the PRC is likely to increase tenfold, nothing will be changed by free training offered to Chinese students or by inviting their elders on trips—part tourism, part law conferences—around our countries. A realistic analysis should be followed by realistic recommendations. For all that, should we do nothing? Of course not, but we should bear in mind that the practice of training Chinese lawyers, in which many Western governments are engaged, is only a long-term investment, and one that will bear fruit only when the People’s Republic collapses and when China has achieved a certain level of prosperity.

While awaiting this happy outcome, everyone should read Bird in a Cage!

Translated from French original by Philip Liddell